County Attorney Bill Montgomery characterized the lawyer shortage as a mix-up — and declined to talk further about it.
The Maricopa County Attorney’s Office has not obtained a death penalty in a capital murder case since November 2015 — but it’s not for lack of trying.
From July 1, 2014, until now, the office has “resolved” 35 cases in which it filed a notice to seek the death penalty. In only six of those were death sentences ultimately imposed at trial.
In the past two fiscal years, the County Attorney’s Office has filed more death penalty cases than it has resolved. And by January, there were so many potential capital cases that the county ran out of specialized attorneys to defend them.
As word of the shortage leaked to the press, Maricopa County Attorney Bill Montgomery, who makes the ultimate decision whether to seek the death penalty, scrambled to designate possible capital cases as non-capital cases.
Through spokesmen, Montgomery characterized the shortage of defense attorneys as a mix-up — and declined to talk about it further.
The Arizona Republic was able to obtain correspondence about the “mix-up” from public defender agencies through the Arizona Public Records Law. But few county-employed attorneys or staff members — including those who must battle his prosecutors during death-penalty trials — are willing to discuss Montgomery’s office’s actions on the record.
Capital murder cases are different from non-capital cases. Defendants facing the death penalty get not one, but two, publicly paid defense attorneys who must be certified for death-penalty work. They also get an investigator and a mitigation specialist.
Consequently, capital murder cases cost eight to 40 times more than first-degree murder cases where the death penalty is not on the table.
“It’s really difficult to manage these things,” said Jim Haas, the county’s Public Defender. “All first-degree murder cases have the potential of being death-penalty cases. We have to assign people.”
A supervisor at another of the county’s four indigent-defense agencies said, “We’re almost always within a case or two of running out of them (attorneys).”
Yet another called it “a strain on resources.”
A capital murder trial that ends in a life sentence costs about a half-million dollars to defend, more than 21 times the cost of defense in a first-degree murder trial where the death penalty is not sought, according to an audit commissioned in 2015 by the county Office of Public Defense Services. A capital case that ends in a death sentence costs 40 times more, the added cost driven by post-conviction legal activities designed to keep the defendant off the lethal-injection table.
Often, death-notice cases filed by the Maricopa County Attorney’s Office end in plea agreements.
“For a variety of reasons it appears that juries in Maricopa County are less willing to return death verdicts in trials for first-degree murder than they once were,” said John Canby, an attorney who works for the Maricopa County Public Defender’s Office and sits on the Capital Defense Review Committee, an informal group that advises the indigent defense agencies.
“Nevertheless,” Canby said, “it seems that the County Attorney’s Office is still willing to seek death sentences in cases with only a remote possibility of a death verdict. That practice costs the taxpayers of Maricopa County a lot of money because the court is required to appoint capital-qualified attorneys to those cases, even if the possibility of a death sentence is in fact very remote.”
At present, there are 65 active death-penalty cases in Maricopa County Superior Court, according to court administrators.
On Jan. 31, Christina Phillis, who recently took over direction of the Office of Public Defense Services, sent an email to Superior Court Presiding Criminal Court Judge Sam Myers saying that she could not find attorneys for a capital case. Phillis’ office oversees all of the county’s criminal defense agencies for indigents: the Office of the Public Defender, the Office of the Legal Defender, the Office of the Legal Advocate; and the Office of Contract Counsel, which hires outside attorneys to handle cases the other agencies can’t take.
Pushing past capacity
The death sentence, according to U.S. Supreme Court case law, is supposed to be reserved for the “worst of the worst” cases. To get a death sentence, prosecutors must prove there is at least one “aggravating factor,” chosen from a statutory list, and that the aggravation outweighs any mitigating factors presented by the defense.
County defense attorneys have long argued that there are so many aggravating factors in the state’s death-sentence statute that prosecutors can seek death in nearly every first-degree murder case, blurring what constitutes the worst of the worst. On March 15, however, the Arizona Supreme Court ruled in a murder appeal that the statute is adequate and that prosecutors indeed have the discretion to make death-penalty decisions.
According to several members of the Capital Defense Review Committee, a former head of the county attorney’s homicide unit used to inform them of cases in which they were likely to seek the death penalty, so they could plan accordingly.
But under Deputy County Attorney Jeannette Gallagher’s direction, that is not being done, they said. In addition, prosecutors have been demanding to see what the defense’s mitigating evidence will be shortly after the murder charge is filed, saying they need it to take before the county attorney’s committee that determines which cases are capital and which aren’t.
The requirement forces defense attorneys to divulge their defenses beforehand. It also triggers the appointment of capital defense teams.
On Feb. 6, Phillis sent an email to Montgomery.
“Something change with the way your office is handling 1st degree murder cases?” she asked. “OPDS and the staffed office have been assigning capital teams after the initial arraignment, on cases they believed had the potential to become capital. The past procedure has allowed for ethical, efficient and cost-effective representation.
“Recently, on almost every 1st degree case the assigned attorney is being asked if they want to submit mitigation for the capital review team and/or agree to an extension regarding a motion to seek the death penalty,” she continued. “Once the request is made the case is then reassigned to a capital team. This has resulted in the staffed office and OCC (Office of Contract Counsel) reaching their capacity to assign capital cases.”
Course of least resistance
As of February, 15 capital murder cases were assigned to the Public Defender’s Office, 11 to the Legal Advocate, and nine to the Legal Defender. The Office of Contract Counsel, which is directly under Phillis, had 30, which she had to divide between 16 first-chair, death-qualified attorneys and 12 second chairs.
It’s not the first time.
In 2007, for example, former County Attorney Andrew Thomas filed so many death notices that the system crashed. At that time, Maricopa County had 130 to 140 pending capital cases. Pima County had four.
This time, Montgomery acted quickly.
According to an email Phillis sent to The Republic, “Attorneys became available when the (county attorney) chose not to pursue death notices in a few cases and two defendants received life (sentences).”
Later she specified that Montgomery’s office had chosen not to pursue death in five cases that were in question. He has that discretion.
Most recent death-penalty cases haven’t gone to trial.
According to Superior Court administrators, prosecutors resolved 20 cases in fiscal 2015. Of those, three were dismissed, 11 ended in plea deals, six went to trial and four defendants were sentenced to death. Meanwhile, eight new cases were filed.
In fiscal 2016, seven cases were resolved, Four went to trial. Two resulted in death sentences. The office filed 11 new death cases, however.
So far in fiscal 2017, eight capital cases have been resolved. None ended in death sentences. Ten new capital cases have been filed.
All have been defended as capital cases, driving up costs.
An audit commissioned by Phillis’ predecessor at the Office of Public Defense Services examined trial costs from 2011 to 2015. It found it cost about $27,000 to defend a non-capital murder defendant at trial. But if the death penalty is sought, the defense cost jumps to $213,000, even if the case later is pleaded down to a lesser offense or a lesser sentence.
When a capital case goes to trial and ends in a life sentence, it costs $580,000 to defend. And if it ends in a death sentence, it can cost $1 million, not including the price of federal appeals.
“This is where the rubber meets the road in this system,” defense attorney Larry Hammond said. “The Legislature gives the prosecutor tremendous power. It is up to the discretion of a publicly elected prosecutor (to decide) who gets death and who does not.”
“I think seeking death is the course of least resistance,” Hammond said. “You do not want to be thought of as soft if you’re in that office.”
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